Court of Appeal overturns Birmingham CC v D: 16-17 year olds who lack capacity not deprived of their liberty within Art 5 where parents consent to their confinement

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Re D (A Child) [2017] EWCA Civ 1695, Sir James Munby, President of the Court of Protection, David Richards and Irwin LJJ, 31 October 2017

This is the appeal from the decision of Keehan J in Birmingham CC v D [2016] EWCOP 8.

The issue was whether D, aged 16, was deprived of his liberty within the meaning of Art 5 ECHR.

D had ADHD, Asperger’s syndrome, Tourette’s syndrome and suffered from a mild learning disability. He was admitted to a specialist hospital. D’s parents agreed to his accommodation there under s 20 Children Act. The placement was funded by the local authority.

When D was 15, Keehan J held that he was not “Gillick competent” and that his parents’ consent to his placement fell within the “zone of parental responsibility” (Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922(Fam)). In his decision in 2016 (the decision under appeal) Keehan J held D’s parents could not consent to his confinement now that D had attained the age of 16 and that D’s confinement was attributable to the state.

It was argued on the appeal that a parent can consent to arrangements for a child who has reached 16 which would otherwise amount to a deprivation of liberty.

It was held that the issues fell to be considered in the framework of Art 5 set out in Storck v Germany (2005) 43 EHRR 96, summarised in Cheshire West at para 37: the three components of a deprivation of liberty are (a) the objective component of confinement to a particular restricted place for a not negligible length of time (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state (“the Storck components”).

Allowing the appeal, it was held, applying the principle in Nielsen v Denmark (1988) 11 EHRR 175 (a case which concerned Storck component (b)), that one first had to identify the relevant “rights of the holder of parental authority” which was to be determined by domestic law. There was no “magic” in the age of 16, given that the principle that “Gillick capacity” was “child-specific” the reality was that in any particular context, one child may have “Gillick capacity” at the age of 15 while another may not have acquired “Gillick capacity” even by the age of 18 [84].

It was held that the exercise of parental responsibility comes to an end, not on the attaining of some fixed age, but on attaining “Gillick capacity” [125]. Parental responsibility is exercisable in relation to a child who for whatever reason lacks “Gillick capacity” [128].

Further, the UN Convention on the Rights of the Child did not detract from this conclusion. As regards the UN Convention on the Rights of Persons with Disabilities (UNCRPD), it was argued that a mentally disabled 16- year old must be treated in the same way as a non-mentally disabled 16-year old so that if parental consent to confinement was not permissible for a non-disabled 16-year old it could not be permissible for a disabled 16-year old, notwithstanding the different mental capacity of each child. See the summary of the arguments at paras [139- 142]. Rejecting these arguments, it was held that there was no discrimination where a person was acting in a manner compatible with Gillick, nor was there a breach of ss 13 and 15 Equality Act 2010 because the reason why Art 5 was not engaged was because the parents made the decision not the local authority: they gave consent which domestic law empowered them to give and which Nielsen treated as being effective for the purpose of Storck component (b).

It was held that the mere fact that a child was being accommodated by a local authority under s 20 Children Act 1989 does not of itself constitute a parental consent. It has to be decided what the parents in fact consented to. In this case the parents had in fact consented to D being accommodated at placement B [150].

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